14-003606MPI Agency For Health Care Administration vs. Cape Memorial Hospital, Inc., D/B/A Cape Coral Hospital
 Status: Closed
Recommended Order on Wednesday, July 27, 2016.


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Summary: Petitioner may receive Medicaid overpayment from provider.

1In determining how to rule ·upon Respondent's exceptions and whether to adopt the ALJ' s

16Recommended Order in whole or in part, the Agency must follow section 120.57(1 )(l), Florida

31Statutes (20 15), which provides in pertinent part:

39The agency may adopt the recommended order as the final order of the agency.

53The agency in its final order may reject or modify the conclusions of law over

68which it has substantive jurisdiction and interpretation of administrative rules

78over which it has substantive jurisdiction. When rejecting or modifying such

89conclusion of law or interpretation of administrative rule, the agency must state

101with particularity its reasons for rejecting or modifying such conclusion of law or

114interpretation of administrative rule and must make a finding that its substituted

126conclusion of law or interpretation of administrative rule is as or more reasonable

139than that which was rejected or modified. Rejection or modification of

150conclusions of law may not form the basis for rejection or modification of

163findings of fact. The agency may not reject or modify the findings of fact unless

178the agency first determines from a review of the entire record, and states with

192particularity in the order, that the findings of fact were not based upon competent

206substantial evidence or that the proceedings on which the findings were based did

219not comply with essential requirements of law ....

227§ 120.57(1)(/), Fla. Stat. Additionally, "[t]he final order shall include an explicit ruling on each

242exception, but an agency need not rule on an exception that does not clearly identify the disputed

259portion of the recommended order by page number or paragraph, that does not identify the legal

275basis for the exception, or that does not include appropriate and specific citations to the record."

291§ 120.57(1)(k), Fla. Stat. In accordance with these legal standards, the Agency makes the

305following rulings on Respondent's exceptions:

310In its first exception, Respondent takes exception to Paragraph 6 of the Recommended

323Order, arguing it is incomplete. Respondent's argument does not constitute a valid reason for the

338Agency to reject or modify the finding of fact in Paragraph 6 of the Recommended Order. See§

355120.57(1)(/), Fla. Stat.; Heifetz v. Department of Business Regulation, 475 So. 2d 1277, 1281

369(Fla. 1st DCA 1985) (holding that an agency "may not reject the hearing officer's finding [of

385fact] unless there is no competent, substantial evidence from which the finding could reasonably

399be inferred"). Since the finding of fact in Paragraph 6 of the Recommended Order is based on

417competent, substantial record evidence (See Petitioner's Exhibit 1 ), the Agency must deny

430Respondent's first exception.

433In its second exception, Respondent takes exception to Paragraph 8 of the Recommended

446Order because "it does not accurately set out the individuals who are eligible for Medicaid."

461Respondent's argument does not constitute a valid reason for the Agency to reject or modify the

477finding of fact in Paragraph 8 of the Recommended Order. See § 120.57(1)(/), Fla. Stat.;

492Heifetz, 475 So. 2d at 1281. Paragraph 8 of the Recommended Order is a mixed finding of fact

510and conclusion of law. To the extent it is a finding of fact, it is based on competent, substantial

529record evidence. See Transcript, Page 44; Petitioner's Exhibit 21 at 1-2 and 3-2; Respondent's

543Exhibit 19 at Page 58; § 414.095(2), Fla. Stat. To the extent it is a conclusion of law, the

562Agency finds that, while it has substantive jurisdiction over the conclusion of law in Paragraph 8

578of the Recommended Order, it cannot substitute a conclusion of law that is as or more reasonable

595than that of the ALJ. Accordingly, the Agency denies Respondent's second exception.

607In its third exception, Respondent takes exception to Paragraph 9 of the Recommended

620Order, arguing: 1) section 409.902(2)(b), Florida Statutes is not applicable to this proceeding; 2)

634the statute speaks for itself and the ALJ's paraphrasing of it causes a misconstruction of the

650statute; and 3) it is a conclusion oflaw that is erroneous. Although labeled as a finding of fact by

669the ALJ, Paragraph 9 of the Recommended Order is actually a conclusion of law because the

685ALJ is quoting and interpreting a statutory provision. Respondent's first and third arguments are

699valid, but only to an extent. Section 409.902(2)(b), Florida Statutes, is not applicable to this

714proceeding. However, because section 409.904(4), Florida Statutes, contains substantially the

724same language as section 409.902(2)(b), Florida Statutes, Respondent's contention that

734paragraph 9 of the Recommended Order is erroneous or misconstrues the law is not true. The

750Agency finds that it has substantive jurisdiction over the conclusions of law in Paragraph 9 of the

767Recommended Order because it is the single state agency in charge of administering Florida's

781Medicaid Program, and also finds that it can substitute conclusions of law that are as or more

798reasonable than those of the ALJ. See § 120.57(1)(1), Fla. Stat. Therefore, the Agency grants

813Respondent's third exception only to the extent that it modifies Paragraph 9 of the

827Recommended Order as follows:

8319. Pursuant to section 409.902(2)(b)409.904(4), Medicaid funds

838canftet be used to provide medical services to individuals who do

849net-meet the statutory eligibility criteria "except citizenship" and

857are "in need of emergency medical services." These individuals

866are only eligible for emergency medical services for "the period of

877the emergency, in accordance with federal regulations." "unless

885the serviees are neeessacy to treat an emergeney medieal

894eondition" or are for pregnant v;omen. The eited statute further

905provides that sueh serviees are "authorized only to the extent

915provided under federal law."

919In its fourth exception, Respondent takes exception to Paragraph 12 of the Recommended

932Order, arguing: 1) it mischaracterizes section 409.904(4), Florida Statutes; 2) confuses eligibility

944with payment; and 3) fails to state that the period of emergency is not limited by federal law.

962Paragraph 12 is a conclusion of law within AHCA's substantive jurisdiction because it quotes

976and interprets section 409.904(4), a statute that AHCA is charged with administering. The ALJ's

990interpretation of section 409. 904( 4 ), Florida Statutes, is consistent with the plain statutory

1005language; it does not mischaracterize the statutory language and is not incomplete, as

1018Respondent suggests, nor does it confuse eligibility with payment. Thus, AHCA concludes that

1031it cannot substitute conclusions of law that are as or more reasonable than the ALJ' s, and denies

1049Respondent's fourth exception.

1052In its fifth exception, Respondent takes exception to Paragraph 13 of the Recommended

1065Order, arguing it is incomplete because it fails to reference other rules that Respondent believes

1080are relevant. Respondent's argument does not constitute a valid basis for rejecting findings of

1094fact. The finding of fact in Paragraph 13 of the Recommended Order is based on competent,

1110substantial record evidence. See Transcript, Pages 44 and 47; Petitioner's Exhibits 21 and 23;

1124Respondent's Exhibit 20 at Pages 33 and 54-55. Thus, the Agency is not at liberty to reject or

1142modify it. See § 120.57(1)(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency

1158must deny Respondent's fifth exception.

1163In its sixth exception, Respondent takes exception to Paragraph 16 of the Recommended

1176Order, arguing it is incomplete and fails to take into consideration the limitations imposed on the

1192Agency by sections 409.905(5)(a) and section 409.913(3), Florida Statutes, where the Agency

1204has implemented a prior authorization program and/or engaged in prepayment review.

1215Paragraph 16 of the Recommended Order is a mislabeled conclusion of law that correctly

1229interprets the Agency's role in the oversight of Medicaid providers, as set forth in section

1244409.913, Florida Statutes. While the Agency has substantive jurisdiction over the conclusion of

1257law in Paragraph 16 of the Recommended Order because it is the single state agency in charge of

1275administering Florida's Medicaid program, including the interpretation and application section

1285409.913, Florida Statutes, in light of other statutory sections, AHCA agrees with the ALJ's

1299interpretation of the law and cannot substitute a conclusions of law that is as or more reasonable.

1316Therefore, for these reasons and for the reasons set forth in AHCA's ruling on Respondent's

1331fourteenth exception, the Agency denies Respondent's sixth exception.

1339In its seventh exception, Respondent takes exception to Paragraph 17 of the

1351Recommended Order, arguing it is not supported by competent, substantial evidence. The

1363finding of fact in Paragraph 1 7 of the Recommended Order is supported by competent,

1378substantial record evidence. See Transcript, Pages 37-38, 66-67; Respondent's Exhibit 30 at

1390Page 7. Thus, the Agency cannot reject or modify it. See § 120.57(1)(/), Fla. Stat.; Heifetz, 475

1407So. 2d at 1281. Therefore, the Agency denies Respondent's seventh exception.

1418In its eighth exception, Respondent takes exception to Paragraph 19 of the Recommended

1431Order because: 1) "AHCA conducted the review of Respondent's claims through one of its

1445divisions, BMPI"; and 2) "the peer reviewers were reviewing the recipient's status as to whether

1460it had an [emergency medical condition ("EMC")] and its duration; not the services rendered."

1476Respondent's arguments are not valid reasons for the Agency to disturb the finding of fact in

1492Paragraph 19 of the Recommended Order. The finding of fact in Paragraph 19 of the

1507Recommended Order is supported by competent, substantial record evidence. See Petitioner's

, 1518Exhibits 2, 3 and 4. Thus, the Agency is prohibited by law from rejecting or modifying it. See §

1537120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Respondent's

1551eighth exception.

1553In its ninth exception, Respondent takes exception to Paragraph 21 of the Recommended

1566Order because: 1) "the designated peer reviewers made a determination for each claim as to

1581whether the [undocumented alien] had an EMC and its duration; not whether the claim was

1596related to an EMC"; and 2) the finding of fact in Paragraph 21 is not complete. Neither of

1614Respondent's arguments constitute a valid basis for the Agency to reject or modify a finding of

1630fact. See § 120.57(1)(!), Fla. Stat. The finding of fact in Paragraph 21 of the Recommended

1646Order is based on competent, substantial record evidence. See Transcript, Pages 49-50;

1658Petitioner's Exhibit 24 at Pages 26-29; Petitioner's Exhibit 25 at Pages 30-34; and Petitioner's

1672Exhibit 26 at Pages 13-21. Thus, the Agency is not permitted to reject or modify it. See §

1690120.57(1)(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies Respondent's

1704ninth exception.

1706In its tenth exception, Respondent takes exception to Paragraph 22 of the Recommended

1719Order because: 1) Respondent believes the phrase "fully credited" is "vague and without any

1733clear meaning"; 2) "the peer reviewers' testimony is not competent, substantial evidence to

1746support a finding of fact that AHCA made an overpayment to Respondent"; and 3) the finding is

1763incomplete. Respondent's first and third arguments do not constitute valid bases upon which the

1777Agency can reject or modify a finding of fact. See § 120.57(1)(1), Fla. Stat. Respondent's

1792second argument concerns both the validity ofthe peer reviewers' testimony, which is outside of

1806the Agency's substantive jurisdiction (See Barfield v. Department of Health, 805 So. 2d 1008

1820(Fla. 1st DCA 2002)), and the weight the ALJ gave to the peer reviewers' testimony, which is

1837not something that the Agency can second guess (See Heifetz, 475 So. 2d at 1281). Therefore,

1853the Agency denies Respondent's tenth exception.

1859In its eleventh exception, Respondent takes exception to Paragraphs 24, 26, 28, 30, 32

1873and 34 of the Recommended Order, arguing they are incomplete and for the reasons set forth in

1890its ninth and tenth exceptions. The Agency cannot reject or modify findings of fact because they

1906are "incomplete," as Respondent believes. Instead, the Agency may only reject findings of fact

1920if they are not based on competent, substantial evidence in the record or the proceedings on

1936which they are based departed from the essential requirements of law. See§ 120.57(1), Fla. Stat.

1951Respondent made no such allegations in regard to the findings of fact in Paragraphs 24, 26, 28,

196830, 32 and 34 of the Recommended Order. Additionally, the findings of fact in Paragraphs 24,

198426, 28, 30, 32 and 34 of the Recommended Order are based on competent, substantial record

2000evidence. See Petitioner's Exhibit 24 at Pages 26-29; Petitioner's Exhibit 25 at Pages 30-34; and

2015Petitioner's Exhibit 26 at Pages 13-21. Thus, the Agency cannot disturb them. See §

2029120.57(1)(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency must deny

2043Respondent's eleventh exception for this reason, as well as the reasons set forth in the ruling on

2060Respondent's ninth and tenth exceptions supra, which are hereby incorporated by reference.

2072In its twelfth exception, Respondent takes exception to Paragraph 36 of the

2084Recommended Order, arguing it is incomplete for the reasons set forth in its sixth exception.

2099Based on the reasoning set forth in the Agency's ruling on Respondent's sixth exception supra,

2114which is hereby incorporated by reference, the Agency finds that, while it does have substantive

2129jurisdiction over the ALJ's conclusions of law in Paragraph 36 of the Recommended Order

2143because it is the single state agency in charge of administering Florida's Medicaid program, it

2158cannot substitute conclusions of law that are as or more reasonable than those of the ALJ.

2174Therefore, the Agency must deny Respondent's twelfth exception.

2182In its thirteenth exception, Respondent takes exception to Paragraph 3 7 of the

2195Recommended Order, arguing "there has been no finding that the Respondent submitted claims

2208for services that were not medically necessary or not fully documented" and "Respondent

2221submitted its claims in accordance with AHCA's policies at the time." The ALJ's conclusion of

2236law in Paragraph 3 7 of the Recommended Order correctly quotes and interprets section 409.913

2251Florida Statutes, including subsection (7). While the Agency has substantive jurisdiction over

2263the conclusions of law in Paragraph 3 7 of the Recommended Order because it is the single state

2281agency in charge of administering Florida's Medicaid Program, it cannot not substitute a

2294conclusion of law that is as or more reasonable than that of the ALJ; indeed, AHCA agrees with

2312the ALJ's interpretation. Therefore, the Agency denies Respondent's thirteenth exception.

2322In its fourteenth exception, Respondent takes exception to Paragraph 39 of the

2334Recommended Order, arguing: 1) "the audit report does not identify an overpayment"; 2) "the

2348retrospective review is barred by administrative finality and § 409.905(5)(a)"; 3) "AHCA has no

2362authority to determine the existence or duration of an EMC"; 4) "the peer reviewers' reports

2377exceed their statutory authority"; 5) "AHCA's application of the rules to arrive at the

2391determination of the alleged overpayment is inconsistent with both Bayfront I and Bayfront II,

2405and is an unadopted, invalid rule"; and 6) "the review was conducted beyond the statute of

2421limitations."

2422Respondent's first argument is contrary to competent, substantial record evidence. See

2433Petitioner's Exhibit 4.

2436In regard to Respondent's second argument, the Agency has substantive jurisdiction over

2448the conclusion of law in Paragraph 16 of the Recommended Order because it is the single state

2465agency in charge of administering Florida's Medicaid program, including the interpretation and

2477application section 409.913, Florida Statutes, in light of other statutory sections, including

2489section 409.905(5)(a), Florida Statutes. To construe section 409.905(5)(a), Florida Statutes, as a

2501bar that prohibits the Agency from conducting any retrospective audits under section 409.913,

2514Florida Statutes, would lead to an absurd result. Instead, the Agency interprets the two statutory

2529sections in the same manner as the ALJ did in the case of Agency for Health Care

2546Administration v. Florida Hospital Orlando, ll-2892MPI (AHCA 2012), which also dealt with

2558the issue of whether services rendered to undocumented aliens were medically necessary to treat

2572an EMC, and which AHCA hereby adopts and incorporates by reference. In the Florida Hospital

2587Orlando case, the ALJ concluded

2592Prior approval by KeP[RO] does not estop AHCA from pursuing

2602overpayment claims when an audit does not support the charges

2612and services billed to Medicaid. AHCA has the daunting task of

2623chasing monies already paid to providers who may or may not

2634have submitted accurate or truthful information to KeP[RO]. Prior

2643approval does not justify payment when contrary to law. AHCA

2653must always protect the Medicaid funds it is challenged to

2663conserve so that bona fide recipients receive the medical care they

2674reqmre.

2675Recommended Order at Page 11 (adopted by AHCA's Final Order). AHCA need not address the

2690applicability of the doctrine of administrative finality to this matter because it was not addressed

2705by the ALJ in this paragraph and because application of the doctrine is a conclusion of law that is

2724outside of the Agency's substantive jurisdiction. See, Deep Lagoon Boat Club, Ltd. v.

2737Sheridan, 784 So. 2d 1140, 1142 (Fla. 2d DCA 2001) (stating an agency does not have

2753substantive jurisdiction to decide whether the doctrine of collateral estoppel applies to a

2766particular case).

2768In regard to Respondent's third, fourth and fifth arguments, DCF is the state agency

2782responsible for determining whether persons are eligible 1 to enroll in Medicaid. § 409.902, Fla.

2797Stat. 2 DCF reviews applications for Medicaid enrollment submitted by or on behalf of

2811individuals and families to determine whether they meet the income, asset, and categorical

2824eligibility tests set forth in federal and state law such that they may be enrolled as Medicaid

2841recipients. § 409.902, Fla. Stat.; § 409.903, Fla. Stat.; § 409.904, Fla. Stat. In determining

2856whether an applicant is categorically eligible to enroll in Medicaid based on a medical condition

2871(such as pregnancy, age, blindness or other disability, or the need for certain services, including

2886undocumented aliens in need of emergency medical services), DCF may consider any

28981 Webster's Dictionary defines the term "eligible" as "able to be chosen for something; able to do or receive

2917something; qualified to participate or be chosen." Merriam-Webster Dictionary, http://www.merriam­

2927webster.com/dictionary/eligible (last visited March 21, 20 16).

29342 Unless otherwise stated, all statutory references from this point forward are to the 2005 through 2007 versions of

2953the Florida Statutes, which were in effect during the period when the claims at issue in this case were submitted to

2974AHCA for payment.

2977documentation submitted to it by or on behalf of the applicant.

2988§ 409.902, Fla. Stat.;§ 409.903(5), (8), Fla. Stat.;§ 409.904(1), (2), (3), (4), (5), Fla. Stat. With

3006respect to undocumented aliens, DCF must consider the application and supporting

3017documentation to determine whether and when the alien had an emergency medical condition

3030("EMC"), as such aliens are only Medicaid-eligible for the period of the EMC. See

3046Respondent's Exhibit 23 at Pages 8-9; 42 U.S.C. § 1396b(v)(2); 42 C.F.R. § 440.255; § 409.902,

, 3062Fla. Stat.; § 409.904(4), Fla. Stat.; Fla. Admin. CodeR. 65A-1.715(1). However, in making its

3076eligibility determinations, DCF relies on the documentation provided to it, and does not

3089necessarily receive and review any medical records. See Respondent's Exhibit 23 at Pages 33-

310334.

3104In contrast, AHCA is "the single state agency authorized to make payments for medical

3118assistance and related services under Title XIX of the Social Security Act," codified at 42 U.S.C.

3134§ 1396a, et seq. § 409.902, Fla. Stat. AHCA contracts with health care providers to provide

3150medical goods and services to enrolled Medicaid recipients, receives and pays the claims health

3164care providers submit for goods and services furnished, conducts claims audits, and recovers any

3178overpayments for paid claims that it determines were not reimbursable.

3188§§ 409.903-.906, Fla. Stat.; § 409.907(1)-(3), (5)(a), (5)(b), (7)-(9), Fla. Stat.; § 409.908, Fla.

3202Stat.; § 409.913(1)(e), (2), (3), (5), (7), (9), (11), (15), (20)-(23), (27), Fla. Stat. As part of its

3220post-payment audits, AHCA requests and then reviews the provider's contemporaneous records,

3231including medical records, supporting each audited claim to determine whether the goods or

3244services billed for were rendered in accordance with the requirements of federal and state

3258Medicaid law, including whether they were "medically necessary" for the recipient, as

3270determined by a contracted, licensed physician or "peer"; if not, the claim is not payable by

3286Medicaid, and the Agency may refuse to pay it or require repayment. § 409.905, Fla. Stat.; §

3303409.906, Fla. Stat.; §409.913(1)(d), (7)(b), (7)(f), (9), (11), (15), (20)-(23), Fla. Stat.;§ 409.9131,

3317Fla. Stat.; Fla. Admin. CodeR. 590-1.010(166). See also 42 C.P.R.§ 440.230(d); Moore ex rel.

3331Moore v. Reese, 637 F.3d 1220, 1232-33 (11th Cir. 2011) ("Although the standard of "medical

3347necessity" is not explicitly denoted in the Medicaid Act, it has become a judicially accepted

3362component of the federal legislative scheme .... Accordingly, even if a category of medical

3376' services or treatments is mandatory under the Medicaid Act, participating states must provide

3390those medical services or treatments for Medicaid recipients only if they are 'medically

3403necessary."'). With respect to undocumented aliens, AHCA must make the additional

3415determination whether the goods or services billed were necessary to treat an EMC, as

3429determined by a contracted, licensed physician or "peer" and based on the provider's supporting

3443medical records; if not, the claim is not payable. See 42 U.S.C. § 1396b(v)(2); 42 C.P.R. §

3460440.255; § 409.902, Fla. Stat.; § 409.904(4), Fla. Stat.; § 409.913(l)(d), (7), (9), (11), (15)(b)­

3475(d), Fla. Stat.;§ 409.9131, Fla. Stat.; Fla. Admin. CodeR. 590-1.010(166).

3486Indeed, for Medicaid payment purposes, a provider's claims must be "documented by

3498records made at the time the goods or services were provided, demonstrating the medical

3512necessity for the goods or services rendered. Medical goods or services are excessive or not

3527medically necessary unless both the medical basis and specific need for them are fully and

3542properly documented in the recipient's medical record." § 409.913(7)(£), Fla. Stat. In addition, a

3556Medicaid provider must "retain medical, professional, financial, and business records pertaining

3567to services and goods furnished to a Medicaid recipient and billed to Medicaid for a period of 5

3585years after the date of furnishing such services or goods." § 409.913(9), Fla. Stat. Section

3600409.913(1)(d), Florida Statutes, expressly provides: "For purposes of determining Medicaid

3610reimbursement, [AHCA] is the final arbiter of medical necessity. Determinations of medical

3622necessity must be made by a licensed physician or "peer" employed by or under contract with

3638[AHCA] and must be based upon information available at the time the goods or services are

3654provided." See§ 409.901, Fla. Stat.;§ 409.9131(2), (5)(b), Fla. Stat.

3664AHCA cannot refuse to make payments to a Medicaid provider on the basis that it

3679believes DCF erroneously determined the recipient was eligible for Medicaid, based on the

3692application submitted to DCF. § 409.907(5)(b), Fla. Stat. However, AHCA can and must

3705refuse to pay the provider or require repayment if it finds a claim is not supported by the

3723provider's contemporaneous records, including medical records, demonstrating that the goods or

3734services billed for were provided in accordance with the requirement of law and were "medically

3749necessary" for the recipient, as determined by the Agency's contracted, licensed physician or

"3762peer." § 409.905, Fla. Stat.; § 409.906, Fla. Stat.; §409.913(l)(d), (2), (7)(b), (7)(f), (9), (11),

3777(15), (20)-(23), Fla. Stat.;§ 409.9131, Fla. Stat.

3785The difference in the roles played by the agencies is made quite clear in the record of this

3803case. In Respondent's Exhibit 45 at Pages 23-24, Tracy Ryder, an investigator with AHCA's

3817Bureau of Medicaid Program Integrity, testified that DCF "is determining eligibility to receive

3830Medicaid, while the other determination as performed by AHCA is to determine whether or not­

3845to determine the duration of the emergency medical condition in terms of the medical

3859presentation and care and the patient's response to treatment. It is a medical review." In

3874Respondent's Exhibit 19 at Page 64, Shevaun Harris, an administrator for AHCA's Bureau of

3888Medicaid Services, stated that "DCF determines a from and through date of when someone is

3903eligible for Medicaid but that does not mean that that person is eligible - would have a condition

3921that requires [AHCA] to pay for services during that entire time frame." In Respondent's Exhibit

393620 at Page 57, Johnnie Shepherd, an administrator with AHCA's Bureau of Medicaid Program

3950Integrity, stated that "Department of Children and Families determines eligibility ... they do not

3964determine coverage." In Respondent's Exhibit 23 at Page 12, Dianna Laffey, the chief of

3978program policy for DCF, stated that "we just do the Medicaid eligibility piece, and then AHCA

3994is the one that pays claims in that. So from what I have always understood, they then determine

4012whether or not those services met that higher level, that higher threshold ... we don't determine

4028that because we don't get medical records." In Respondent's Exhibit 26 at Page 43, Beth

4043Kidder, AHCA's Deputy Secretary for Medicaid Operations, explained that "[e]ligibility and

4054coverage are two different things, and so I want to make that distinction that a span of eligibility

4072may be open but not all services would be covered for that person."

4085Thus, an application for Medicaid eligibility submitted to DCF by or on behalf of a

4100person seeking to enroll in the Medicaid program and a claim for payment submitted to AHCA

4116by a provider seeking reimbursement from Medicaid for a good or service provided to an

4131enrolled recipient have no meaningful overlap. The fact that DCF has determined an

4144undocumented alien is eligible for Medicaid due to an EMC based on the documentation in the

4160eligibility application does not mean that all claims submitted by a provider for goods or services

4176provided to the alien are payable by AHCA. The eligibility application and claim are submitted

4191to different agencies, by different persons, for different purposes, and require different

4203documentation and levels of documentation, i.e. type, detail, and completeness, in support. The

4216eligibility application reviewed by DCF may be accompanied by different documentation,

4227including medical records, than those maintained and supplied by the provider in support of a

4242claim for payment. For instance, this could occur if there was more than one provider of goods

4259or services, if the alien did not submit complete documentation to DCF, or if the provider did not

4277maintain and supply contemporaneous medical record supporting his or her claims to AHCA

4290upon request, as required by law.

4296Further, even assuming the same documentation is submitted in support of both an

4309application for Medicaid eligibility and a provider's claim for payment, DCF's eligibility

4321determination is not the equivalent of AHCA's medical necessity determination. See

4332Respondent's Exhibit 23 at page 12; Respondent's Exhibit 26 at Page 50. AHCA utilizes a

4347contracted, licensed physician to conduct a medical review of claims and supporting

4359documentation; DCF's review of eligibility applications utilizes no such personnel and includes

4371no such component. See Respondent's Exhibit 23 at page 12; Respondent's Exhibit 20 at Page

438628. In addition, the legislature has specified that AHCA, not DCF, is the final arbiter of

"4402medical necessity" for Medicaid payment purposes. § 409.913(l)(d), Fla. Stat.

4412With regard to the fifth claim, Respondent is incorrect regarding its statute of limitations

4426argument. Section 409.913(9), Florida Statutes, requires a Medicaid provider to "retain medical,

4438professional, financial, and business records pertaining to services and goods furnished to a

4451Medicaid recipient and billed to Medicaid for a period of 5 years after the date of furnishing such

4469services or goods." The statute further states that the Agency "may investigate, review, or

4483analyze such records." The audit at issue in this matter began in October 20 I 0 (See

4500Petitioner's Exhibit 2), well within the 5 year period from the date of the earliest claim at issue in

4519this matter.

4521Finally, the ALJ's conclusion of law in Paragraph 39 of the Recommended Order is a

4536correct interpretation of section 409.913(22), Florida Statutes. While the Agency has substantive

4548jurisdiction over the conclusions of law in Paragraph 39 of the Recommended Order because it is

4564the single state agency in charge of administering Florida's Medicaid Program, it cannot not

4578substitute a conclusion of law that is as or more reasonable than that of the ALJ; indeed, AHCA

4596agrees with the ALJ' s interpretation. Therefore, the Agency denies Respondent's fourteenth

4608exception for these reasons and for the reasons stated in the ruling Respondent's sixth exception.

4623In its fifteenth exception, Respondent takes exception to Paragraph 40 of the

4635Recommended Order, arguing: 1) the ALJ' s use of the terms "collected" and "Medicaid funds"

4650is "vague and erroneous"; 2) "a determination of when an EMC is alleviated is not a basis to

4668determine an overpayment"; 3) the ALJ's statement that "the disputed charges referenced herein

4681were not properly billed to Medicaid and are overpayments" is a finding of fact that is contrary

4698to the record evidence and clearly erroneous; and 4) "AHCA is barred from retrospectively

4712reviewing these claims and/or recouping the alleged overpayments." Respondent's first

4722exception does not constitute a valid basis for overturning a conclusion of law. The Agency also

4738rejects Respondent's second, third and fourth arguments for the reasons set forth in its ruling on

4754Respondent's sixth and fourteenth exceptions supra, which are hereby incorporated by reference.

4766Therefore, the Agency denies Respondent's fifteenth exception.

4773In its sixteenth exception, Respondent takes exception to Paragraph 41 of the

4785Recommended Order, "in that as set forth in 1-167, which are incorporated herein by

4799reference, and as set forth herein, Respondent's [sic] assert far more than what the RO states."

4815Taking exception to a conclusion of law because a party asserted more than what the

4830recommended order states is not a valid basis for rejecting or modifying findings of fact or

4846conclusions of law. See § 120.57(1)(1), Fla. Stat. Furthermore, the ALJ stated that the

4860Respondent's "variety of reasons [were] fully presented in the record and in the Respondent's

4874Proposed Recommended Order," so the Agency is unclear as to why Respondent is taking

4888exception to Paragraph 41 of the Recommended Order. Regardless, since Respondent has failed

4901to "identify the legal basis for the exception" as required by section 120.57(1 )(k), Florida

4916Statutes, the Agency need not address it.

4923In its seventeenth exception, Respondent takes exception to Paragraph 42 of the

4935Recommended Order, in which the ALJ concluded that "the same assertions [raised in

4948Respondent's Proposed Recommended Order in this case] were previously litigated and

4959ultimately rejected in AHCA v. Lee Memorial Health System Gulf Coast Medical Center, Case

4973. No. 15-3876MPI (Fla. DOAH January 26, 2016), rejected (Fla. AHCA April 4, 2016),

4987hereinafter "Gulf Coast." Respondent contends "neither the Recommended Order nor the Final

4999Order ruled on all of the argument litigated in Gulf Coast and addressed in the PRO," and, more

5017specifically, that its arguments "regarding the applicability of the statute of limitations, AHCA's

5030lack of compliance with Bayfront I and Bayfront IL the rule applied is an unadapted and invalid

5047· rule, and the peer reviewer's lack of authority to make the determination of whether an

5063[undocumented alien] has an EMC and its duration" were not previously raised in the Gulf Coast

5079case. Respondent argument is meritless. As the ALJ correctly concluded, the same arguments

5092were raised in both cases. Compare Respondent's Proposed Recommended Order in 15-

51043876MPI at Pages 26-39 with Respondent's Proposed Recommended Order in 14-3606MPI at

5116Pages 33-49. Therefore, the Agency denies Respondent's seventeenth exception.

5125In its eighteenth exception, Respondent takes exception to Paragraph 44 of the

5137Recommended Order, arguing the Gulf Coast Final Order is not binding on this case because this

5153case involves a different Respondent. The Agency disagrees. The Gulf Coast Final Order,

5166unless overturned on appeal, is considered prior Agency precedent. Accordingly, the Agency

5178should follow Gulf Coast's precedent, unless it can offer a valid explanation for departing from

5193it. Bethesda Healthcare System, Inc. v. Agency for Health Care Administration, 945

5205So. 2d 574, 576 (Fla. 4th DCA 2006). The Agency cannot offer any explanation for why it

5222would rule in a manner inconsistent with the Gulf Coast Final Order with regard to its legal

5239authority to recover overpayments or otherwise; indeed, AHCA agrees with the ALJ's

5251conclusions of law in Paragraph 44 of the Recommended Order. Thus, while it has substantive

5266jurisdiction over the conclusions of law in Paragraph 44 of the Recommended Order because it is

5282the single state agency in charge of administering Florida's Medicaid program, it cannot

5295substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore,

5311the Agency denies Respondent's eighteenth exception.

5317In its nineteenth exception, Respondent takes exception to Paragraph 45 of the

5329Recommended Order, arguing: I) the case of Bayfront Medical Center et al. v. Agency for

5344Health Care Administration ("Bayfront II"), DOAH Case No. 14-4758RU (Fla. Div. Admin.

53581Hrgs. Apr. 20, 2015); per curium affirmed Bayfront Medical Center et al. v. Agency for Health

5374Care Administration, 2016 WL 3523316 (Fla. 1st DCA 2016), has no precedential value because

5388it was a per curiam affirmed opinion; and 2) if it has precedential value, that the Agency has

5406failed to apply its Rules in in accordance with that Final Order. The Agency is only permitted to

5424reject or modify an ALJ's conclusions oflaw concerning whether it relied on an unadopted rule

5439(which is essentially Respondent's argument in this case) unless "the agency first determines

5452from a review of the complete record, and states with particularity in the order, that such

5468determination is clearly erroneous or does not comply with essential requirements of law." §

5482120.57(1)(e)4, Fla. Stat. Nothing Respondent pointed to in the record of this case demonstrates

5496the ALJ's conclusion of law was clearly erroneous or departed from the essential requirements of

5511law in reaching the conclusions of law in Paragraph 45 of the Recommended Order. Therefore,

5526the Agency must deny Respondent's nineteenth exception.

5533FINDINGS OF FACT

5536The Agency adopts the findings of fact set forth in the Recommended Order, except

5550where noted supra.

5553CONCLUSIONS OF LAW

5556The Agency adopts the conclusions of law set forth in the Recommended Order.

5569IT IS THEREFORE ADJUDGED THAT:

5574Respondent is hereby required to repay $57,350.67 in overpayments, plus interest at a

5588rate often (10) percent per annum as required by Section 409.913(25)(c), Florida Statutes, to the

5603Agency. The parties shall govern themselves accordingly.

5610Unless payment has already been made, Respondent shall make full payment of the

5623overpayments, costs and fine to the Agency for Health Care Administration within 30 days of the

5639rendition date of this Final Order unless other payment arrangements have been agreed to by the

5655parties. Respondent shall pay by check payable to the Agency for Health Care Administration

5669and mailed to the Agency for Health Care Administration, Office of Finance and Accounting,

56832727 Mahan Drive, Mail Stop 14, Tallahassee, Florida 32308.

5692Additionally, since the Agency has prevailed in this matter, it is entitled to recover the

5707investigative, legal and expert witness costs it incurred in this matter. § 409.913(23), F.S. The

5722parties shall attempt to agree to amount of investigative, legal, and expert witness costs for this

5738matter. If the parties are unable to reach such agreement, either party may file a request for

5755hearing with the Division of Administrative Hearings under this case style within 30 days of the

5771date of rendition of this Final Order, and the Administrative Law Judge who presided over this

5787matter shall determine the amount of such costs.

5795DONE and ORDERED this J!l.!i day of Ocfob{!f , 2016, in Tallahassee,

5806Florida.

5807JUSTIN NIOR, RI ... SECRETARY

5812AGENCY FOR HEALTH CARE ADMINISTRATION

5817NOTICE OF RIGHT TO JUDICIAL REVIEW

5823A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO

5836JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL

5846NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY ALONG

5859WITH THE FILING FEE PRESCRIBED BY LAW WITH THE DISTRICT COURT OF

5871APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS

5881HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL

5890BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE

5900NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE

5914ORDER TO BE REVIEWED.

5918CERTIFICATE OF SERVICE

5921I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has

5936been furnished by U.S. or interoffice mail to the persons named below on

5949RICHARD J. SHOOP, Agency Clerk

5954Agency for Health Care Administration

59592727 Mahan Drive, MS #3

5964Tallahassee, Florida 32308

5967(850) 412-3630

5969COPIES FURNISHED TO:

5972Honorable William F. Quattlebaum

5976Administrative Law Judge

5979Division of Administrative Hearings

5983The DeSoto Building

59861230 Apalachee Parkway

5989Tallahassee, Florida 32399-3060

5992(via electronic filing)

5995Andrew E. Schwartz, Esquire

5999Jacqueline F. Howe, Esquire

6003Shutts and Bowen LLP

6007200 East Broward Boulevard, Suite 2100

6013Fort Lauderdale, Florida 33301

6017(via U.S. Mail)

6020Daniel Elden Nordby, Esquire

6024Shutts and Bowen LLP

6028215 South Monroe Street, Suite 804

6034Tallahassee, Florida 32301

6037(via U.S. Mail)

6040Joanne Barbara Erde, Esquire

6044Duane Morris LLP

6047200 South Biscayne Boulevard, Suite 3400

6053Miami, Florida 33131

6056(via U.S. Mail)

6059Medicaid Program Integrity

6062Office of the Inspector General

6067(via electronic mail)

6070Medicaid Accounts Receivable

6073Finance & Accounting

6076(via electronic mail)

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 11/08/2016
Proceedings: Respondent's Exceptions to Recommended Order (11-1508-000) filed.
PDF:
Date: 11/08/2016
Proceedings: Agency Final Order filed.
PDF:
Date: 10/26/2016
Proceedings: Agency Final Order
PDF:
Date: 07/27/2016
Proceedings: Recommended Order
PDF:
Date: 07/27/2016
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 07/27/2016
Proceedings: Recommended Order (hearing held January 20, 2016). CASE CLOSED.
PDF:
Date: 03/24/2016
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 03/02/2016
Proceedings: Order Establishing Filing Deadline.
PDF:
Date: 02/25/2016
Proceedings: Agency for Health Care Administration's Proposed Recommended Order filed.
Date: 02/15/2016
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 02/12/2016
Proceedings: Petitioner's Notice of Counter-Designations filed.
PDF:
Date: 02/08/2016
Proceedings: Notice of Designation filed.
PDF:
Date: 02/08/2016
Proceedings: Petitioner, Agency for Health Care Administration's Notice of Designations filed.
PDF:
Date: 01/29/2016
Proceedings: Joint Stipulation on Scheduling of Deposition Designations filed.
Date: 01/25/2016
Proceedings: Respondent's Proposed Exhibits filed (CD; electronic exhibits not available for viewing).
Date: 01/20/2016
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 01/19/2016
Proceedings: Petitioner Agency for Health Care Administration's Amended Exhibit List to Joint Prehearing Stipulation filed.
PDF:
Date: 01/19/2016
Proceedings: Cape Memorial Hospital, Inc., d/b/a Cape Coral Hospital's Response to AHCA's First Request for Production filed.
PDF:
Date: 01/19/2016
Proceedings: Notice of Serving Respondent's Answers to AHCA's First Set of Interrogatories filed.
PDF:
Date: 01/19/2016
Proceedings: Respondent's Notice of Filing Amended Exhibit List filed.
PDF:
Date: 01/15/2016
Proceedings: Respondent's Notice of Filing Affidavit of Corporate Representative filed.
PDF:
Date: 01/12/2016
Proceedings: Petitioner's Response to Respondent's First Request for Production filed.
PDF:
Date: 01/12/2016
Proceedings: Petitioner's Notice of Serving Answers and Objections to Respondent's Second Set of Interrogatories filed.
PDF:
Date: 01/12/2016
Proceedings: Petitioner's Notice of Serving Answers to Respondent's First Set of Interrogatories filed.
PDF:
Date: 01/12/2016
Proceedings: Second Amended Notice of Deposition of Agency Representative Duces Tecum filed.
PDF:
Date: 01/12/2016
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 01/12/2016
Proceedings: Amended Notice of Deposition of Agency Representative Duces Tecum filed.
PDF:
Date: 01/07/2016
Proceedings: Amended Notice of Taking Deposition (of Michael Phillips) filed.
PDF:
Date: 01/04/2016
Proceedings: Order Granting Motion to File Amended Petition.
PDF:
Date: 12/29/2015
Proceedings: Petitioner's Response to Respondent's Motion to File an Amended Petition filed.
PDF:
Date: 12/28/2015
Proceedings: (Respondent) Notice of Deposition of Agency Representative Duces Tecum filed.
PDF:
Date: 12/22/2015
Proceedings: Respondent's Motion to File an Amended Petition filed.
PDF:
Date: 12/15/2015
Proceedings: Notice of Serving Respondent's Second Set of Interrogatories to Petitioner filed.
PDF:
Date: 12/15/2015
Proceedings: AHCA's First Request for Production to Cape Memorial Hospital, Inc. d/b/a Cape Coral Hospital filed.
PDF:
Date: 12/15/2015
Proceedings: Petitioner's Notice of Serving First Interrogatories to Respondent, Cape Memorial Hospital, Inc. d/b/a Cape Coral Hospital filed.
PDF:
Date: 12/08/2015
Proceedings: Respondent's First Request for Production to Petitioner filed.
PDF:
Date: 12/08/2015
Proceedings: Notice of Serving Respondent's First Set of Interrogatories to Petitioner filed.
PDF:
Date: 12/08/2015
Proceedings: Second Amended Notice of Taking Deposition (of Steve Beiser) filed.
PDF:
Date: 12/07/2015
Proceedings: Notice of Cancellation of Taking Deposition (of Naveen Gande) filed.
PDF:
Date: 11/30/2015
Proceedings: Petitioner's Response to Respondent's Motion for Protective Order filed.
PDF:
Date: 11/25/2015
Proceedings: Respondent's Motion for Protective Order filed.
PDF:
Date: 11/25/2015
Proceedings: Notice of Taking Deposition (of Michael Phillips) filed.
PDF:
Date: 11/25/2015
Proceedings: Notice of Taking Deposition (of Thomas Wells) filed.
PDF:
Date: 11/24/2015
Proceedings: Amended Notice of Taking Deposition (of Steve Beiser) filed.
PDF:
Date: 11/23/2015
Proceedings: Order Denying Respondent's Motion to Dismiss.
PDF:
Date: 11/23/2015
Proceedings: Notice of Taking Deposition (of Naveen Gande) filed.
PDF:
Date: 11/23/2015
Proceedings: Notice of Taking Deposition (of Steve Beiser) filed.
PDF:
Date: 11/19/2015
Proceedings: Petitioner's Response to Respondent's Motion for Continuance of Final Hearing filed.
PDF:
Date: 11/13/2015
Proceedings: Respondent's Motion for a Continuance filed.
PDF:
Date: 09/29/2015
Proceedings: Order Denying Motion to Consolidate.
PDF:
Date: 09/28/2015
Proceedings: AHCA's Response to Respondent's Motion to Consolidate filed.
PDF:
Date: 09/28/2015
Proceedings: Notice of Appearance (Jacqueline Howe) filed.
PDF:
Date: 09/22/2015
Proceedings: Respondent's Motion to Consolidate filed.
PDF:
Date: 08/19/2015
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/19/2015
Proceedings: Notice of Hearing (hearing set for January 20 and 21, 2016; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 08/14/2015
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 05/21/2015
Proceedings: Order Continuing Case in Abeyance (parties to advise status by August 14, 2015).
PDF:
Date: 04/30/2015
Proceedings: Joint Status Report filed.
PDF:
Date: 02/17/2015
Proceedings: Order Continuing Case in Abeyance (parties to advise status by April 30, 2015).
PDF:
Date: 02/16/2015
Proceedings: Joint Status Report filed.
PDF:
Date: 12/23/2014
Proceedings: Order Extending Abeyance (parties to advise status by February 16, 2015).
PDF:
Date: 12/15/2014
Proceedings: Joint Response to Order Entered on November 3, 2014 filed.
PDF:
Date: 11/03/2014
Proceedings: Order Granting Respondent's Motion to Hold Proceedings in Abeyance and Denying Respondent's Motion for Leave to Reply (parties to advise status by December 15, 2014).
PDF:
Date: 10/30/2014
Proceedings: Respondent's Motion for Leave to Reply to AHCA's Objection to Abatement filed.
PDF:
Date: 10/27/2014
Proceedings: Notice of Appearance (Andrew Schwartz) filed.
PDF:
Date: 10/24/2014
Proceedings: Petitioner's Response in Opposition to Respondent's Motion to Hold the Proceedings in Abeyance filed.
PDF:
Date: 10/16/2014
Proceedings: Joint Response Regarding Rescheduling of Final Hearing filed.
PDF:
Date: 10/16/2014
Proceedings: Respondent's Motion to Hold the Proceedings in Abeyance filed.
PDF:
Date: 10/01/2014
Proceedings: Order Granting Motion to Amend Final Audit Report and Requiring Joint Response.
PDF:
Date: 09/18/2014
Proceedings: Order Granting Continuance (parties to advise status by September 30, 2014).
PDF:
Date: 09/15/2014
Proceedings: Petitioner's Unopposed Motion for Continuance of Final Hearing filed.
PDF:
Date: 09/10/2014
Proceedings: Notice of Appearance (Daniel Nordby) filed.
PDF:
Date: 09/09/2014
Proceedings: Order Denying Consolidation.
PDF:
Date: 09/04/2014
Proceedings: Notice of Appearance (Joseph Goldstein) filed.
PDF:
Date: 08/27/2014
Proceedings: (Petitioner's) Response in Opposition to Respondent's Motion to Consolidate filed.
PDF:
Date: 08/20/2014
Proceedings: Respondent's Response to AHCA's Motion for Leave to Amend Final Audit Report filed.
PDF:
Date: 08/20/2014
Proceedings: Respondent's Motion to Consolidate filed.
PDF:
Date: 08/15/2014
Proceedings: (Petitioner's) Motion for Leave to Amend Final Audit Report filed.
PDF:
Date: 08/15/2014
Proceedings: Notice of Appearance (Douglas Lomonico) filed.
PDF:
Date: 08/13/2014
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/13/2014
Proceedings: Notice of Hearing (hearing set for October 21 and 22, 2014; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 08/12/2014
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 08/05/2014
Proceedings: Initial Order.
PDF:
Date: 08/05/2014
Proceedings: Final Audit Report filed.
PDF:
Date: 08/05/2014
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 08/05/2014
Proceedings: Notice (of Agency referral) filed.
PDF:
Date: 08/05/2014
Proceedings: Agency referral (request case be sealed) filed.

Case Information

Judge:
WILLIAM F. QUATTLEBAUM
Date Filed:
08/05/2014
Date Assignment:
08/05/2014
Last Docket Entry:
11/08/2016
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
Suffix:
MPI
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (14):

Related Florida Rule(s) (1):